Commentary, news and analysis of cases involving the defense of toxic torts claims from a Northern California attorney.

December 18, 2007

LA Superior Court General Order Overturned

Los Angeles Superior Court has, for many years, had a General Order applicable in asbestos cases designed to avoid the need for defendants to bring full motions for summary judgment (and for the Court to analyze those motions and the opposition thereto) when Plaintiffs lack sufficient evidence that a given defendant's product was a cause of plaintiff's illness. That Order, General Order 29, has been overturned in its entirety by the California Court of Appeals, Second District.

General Order 29 required Plaintiffs, within 8 months of filing a case, to serve and file a Case Report including, among other things, "each product identification witness" and "each product identification document" upon which the Plaintiff intended to rely at trial. Defendant could then, between 45 and 75 days after service of the Case Report, file a Motion to Dismiss for lack of identification. the motions were to be brief, and based solely on the Case Report information. No Declaration or Memorandum of Points and authorities were required. Plaintiffs had until ten days prior to the hearing on the motion to amend the Case Report, "for good cause shown", to include additional documents or witnesses. If the Court found that the Case Report failed to provide adequate information implicating a defendant, that defendant was dismissed, without prejudice to re-serve them if additional information was later acquired.

The Snyder heirs filed a Complaint in Los Angeles Superior Court alleging that some 79 defendants were responsible for exposing Gail Snyder to asbestos, which caused his lung cancer and subsequent death. The Trial Court heard motions to dismiss brought by many defendants, and granted 30 such motions. Plaintiffs argued that General Order 29 was in conflict with California's law on motions for summary judgment, which the Trial Court held was not the case, since the defendants could be re-served, and no judgment was actually entered.

The Snyder's filed a petition for writ of mandate with the California Court of Appeal agreed to hear. In Snyder v. Superior Court, Case No. B197993, the Court held that General Order 29 was completely invalid because it reuqires attorneys to disclose the witnesses and documents upon which they intend to rely at trial, including summaries regarding the anticipated trial testimony of the witnesses. The Appelate Court held this to be a violaiton of the attorney work product privilege.

Given the basis of the Court's ruling, it will be interesting to see whether the Superior Court amends General Order 29 to simply require attorneys to delete the portions of the General Order that conflict with attorney work product privileges (specifically, on what and whom will you rely at trial, and what will the witnesses say), and leave the dismissal process in place.